Contents

Background to devolution

A referendum on Scottish devolution was held on 11 September 1997, with 74% voting in favour of a Scottish Parliament and 63% voting for the Parliament to have powers to vary the basic rate of income tax. This led to the introduction by the UK government of the Scotland Bill, which received Royal Assent on 19 November 1998 and became the Scotland Act 1998.

The Scotland Act 1998

Elections were held on 6 May 1999 and powers previously exercised by the Secretary State for Scotland and other UK ministers were transferred to Scottish ministers on July 1 1999, the same day that the Scottish Parliament was officially convened.

The act does not specify which matters are devolved to the Scottish Parliament, rather it specifies those matters that are reserved to the UK Parliament. Those matters not reserved by the Scotland Act are devolved to the Scottish Parliament. The Scottish Parliament has primary legislative powers, ie the power to pass acts.

The act also created the position of Advocate General for Scotland. The Advocate General is a UK Law Officer and gives legal advice to HM government on Scots law and devolution. The Advocate General also has power to intervene if issues arise as to whether legislation passed by the Scottish Parliament is within its competence.

The passing of the act saw the abolition of the old Scottish Office and the creation of the new Scottish government and Scottish Parliament. In Whitehall, the Scotland Office came into being to assist the Secretary of State for Scotland in his functions and duties.

The Scottish settlement

The establishment of the Scottish Parliament and the Scottish government is provided for in the Scotland Act 1998 (as amended by the Scotland Act 2012). Schedule 5 to the act sets out those matters which are reserved to the UK Parliament. (Note that schedule 5 has been amended since the Scotland Act gained Royal Assent.)

aspects of transport (eg regulation of air services, rail and international shipping)

employment

social security

abortion, genetics, surrogacy, medicines

broadcasting

equal opportunities

Consequently devolved matters include:

health and social work

education and training

local government and housing

justice and policing

agriculture, forestry and fisheries

the environment

tourism, sport and heritage

economic development and internal transport

The Scottish Parliament has the power to pass primary legislation, but cannot legislate on reserved matters. Nor by schedule 4 can it amend protected enactments, such as certain articles of the Act of Union. The UK Parliament remains sovereign, but has not knowingly legislated on a devolved matter since devolution without the agreement of the Scottish Parliament.

The Scottish Parliament

The Scottish Parliament has full legislative powers over devolved matters and its laws are known as ASPs (acts of the Scottish Parliament).

73 constituency MSPs who are elected on a ‘first-past-the-post’ system to represent a particular constituency

56 regional members

There is no difference between the roles played in the Scottish Parliament by MSPs once elected, however they were elected.

The Scottish government

The Scotland Act 1998 created a Scottish government consisting of the First Minister, other ministers appointed by the First Minister, and the Lord Advocate and the Solicitor General for Scotland. These are referred to collectively as Scottish ministers.

The Scottish government is responsible for functions of government within Scotland as far as they extend to devolved matters. Most of its powers, functions and machinery were inherited from the former Scottish Office and other UK government departments operating in Scotland.

Since 2012 the devolved administration has been legally known as the Scottish government. While in legal documents (such as contracts) it must be referred to as the Scottish Executive, in keeping with the language of the Scotland Act, the term Scottish government has become widely used in most other contexts.

Interaction between devolved and reserved matters

The Scottish Parliament is not able to legislate on matters which are reserved and there is a convention that HM government will not introduce legislation on devolved areas without the agreement of the Scottish Parliament. However it will sometimes be necessary for Parliament at Westminster to legislate on devolved matters with the agreement of the Scottish Parliament, or for consequential amendments to be made to UK legislation for an act of the Scottish Parliament to take effect. For this reason there is a system of Scotland act orders (SAOs) and legislative consent motions (LCMs).

LCMs are a procedure by which the Scottish Parliament can give consent for Parliament at Westminster to legislate on a devolved matter.

Scotland act orders in the UK parliament enable amendments to be made to UK legislation affecting Scotland, to enable Scottish legislation to have full effect, or additional powers to be transferred to Scottish ministers.

Information on best practice for dealing with devolution issues when preparing policy is available in the Cabinet Office guidance.